The $64,000 Answer

Tuesday marked Day Two of the defense counterattack waged by former private eye Anthony Pellicano and super-lawyer Terry Christensen, who are accused in federal court of wiretapping and conspiracy. Actually, so far it’s been all Christensen’s defense, with Pellicano passively watching the oratorical fireworks explode over his head.

Today’s highlight was the appearance of Christensen’s star expert witness, Bruce Koenig, and it soon became clear why Pellicano isn’t participating. Koenig, who owns Bek Tek LLC, a Washington, D.C.-area firm specializing in audio-visual recording analysis, was on the witness stand to suggest that all those damning phone-conversations between Pellicano and Christensen that prosecutors had been playing for the past month were doctored to incriminate Christensen. The culprit, it was implied, was none other than Pellicano, who supposedly had recorded Christensen without the lawyer’s knowledge, when the two discussed strategies to discredit the ex-wife of Christensen’s client, entertainment and real estate billionaire Kirk Kerkorian.

Bek Tek had, Koenig freely answered, been paid $64,000 to date by the defense to spend somewhere between 200 and 300 hours analyzing the 35 phone recordings admitted into evidence by the government. But he assured jurors his firm only issued unflinchingly objective reports, regardless of whether or not they were favorable to their clients’ causes.

Koenig’s credentials were impeccable – a former 25-year FBI man whose expertise in civilian business life had been sought by the U.S. Congress, the defense in the Duke University lacrosse team case and by the Hague, along with the Ukrainian parliament. Then there was his education, which included degrees and studies at George Washington University and MIT. Amid all the ivy on Koenig’s resume, though, there was an old certificate issued by the DeVry Institute, a trade school that conjures images of correspondence courses and Radio Shack clerks. In a series of impressive courtroom demonstrations, the smooth and affable Koenig showed how easy it would have been for Pellicano, using his own proprietary software, to digitally remove and/or insert segments from the Pellicano-Christensen dialogues without a trace of the changes ever being detected. Suddenly what seemed like a desperate, far-fetched hypothesis – that the cynically complicit voice of Christensen hadn’t been heard in context in Pellicano’s recordings – appeared to be thoroughly reasonable.

One could almost hear the defense’s closing aphorism: “If you can’t detect, you must acquit!”

Court spectators returned from the break following the end of defense attorney Patty Glaser’s direct examination completely hooked on Act 2 and its only question – How would the government challenge Koenig? Assistant U.S. Attorney Daniel Saunders began by trying to get out of the way an obvious, almost reflexive question: What positive evidence had Koenig and his colleagues found of audio tampering? Since Glaser had gotten Koenig to say that he couldn’t disprove any tampering, it seemed reasonable for him to now answer Saunders that he also couldn’t prove it. But the analytical Koenig insisted on splitting semantic hairs, claiming the mere presence of silent gaps in the recorded conversations potentially represented the fingerprints of an editor.

This was all Saunders needed and he relentlessly pressed Koenig on the point of why he couldn’t, after $64,000 and 300 hours of work, offer a simple answer of whether or not he found indisputable evidence of digital alteration of the recordings. Instead, Koenig invariably resorted to such statements about the recordings as, “I cannot make a decision one way or the other,” or, “They’re probably edited. Maybe they aren’t edited.”

When Saunders expressed disbelief that Koenig could not offer a professional opinion on a subject that is his bread and butter, Koenig replied, “I have a very definite opinion.”

“And that would be that you don’t have one,” Saunders shot back, evoking laughter from the jury.

“My opinion,” Koenig lamely replied about the phone recordings, “is that they could all be authentic or they could be edited.” By the time he replied to one of Saunders’ questions with the Clintonesque “It depends on how you define ‘yes’ or ‘no,’” a collective grin had spread among the jurors. Koenig’s answers were increasingly taking on an improvised, Radio Shack quality about them.

Tomorrow Koenig’s grilling continues, followed, at 11 a.m., by the long-awaited appearance for the defense by the 91-year-old Kirk Kerkorian, the tycoon whose marital meltdown is responsible for everyone having to listen to Pellicano and Christensen’s recordings in the first place.